Rowe v. Commercial Cable Co.

Decision Date13 December 1913
Citation103 N.E. 479,216 Mass. 258
PartiesROWE et al. v. COMMERCIAL CABLE CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Wm A. Pew, Jr., of Gloucester, for plaintiffs.

Carver Wardner, Cavanagh & Walker, of Boston, for defendant.

OPINION

MORTON J.

This is an action of tort for negligently allowing the defendant's wires to be and remain in contact with a tree on the plaintiff's premises and thereby to kill it. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain rulings that were requested.

There was evidence tending to show that the defendant had one pole on the plaintiff's premises and another in the highway about 120 feet north; that on these poles were wires belonging to the defendant company, used for telephoning and for occasional telegraph messages, and that on the same side of the street were electric light poles and wires belonging to the Gloucester Electric Company and carrying a voltage of from 2,000 to 5,000 volts; that some six or seven years before the trial one of the defendant's wires was in contact on several occasions with the tree that was killed and sparks were seen dropping from it; that the defendant's attention was called to it and the trouble was remedied for a time by putting on a glass insulator; that after a while the sparking began again and it was found on examination that the insulator had disappeared; that the attention of the defendant was called to the matter but nothing was done and the tree gradually died, a bare spot about 10 inches long being burned upon it where the wire was in contact with it.

This evidence warranted a finding that the tree was killed by the contact of one of the defendant's wires with it.

The defendant contended and introduced evidence tending to show that it did not generate electricity enough to produce the injury complained of, and excepted to so much of the charge as left it to the jury to determine whether it did. It also excepted to the refusal of the court to instruct the jury that if they found that the destruction of the tree 'was caused by a current of electricity passing into the tree from the defendant's wires, but such current was not generated by the defendant but passed over its wires without its consent, there could be no recovery,' and to the refusal of the court to direct a verdict for the defendant.

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